General Court addresses concepts of vexatious action and abuse of regulatory procedure in judgment upholding rejection of complaint brought by Agria Polska and other companies active in the parallel importation of plant protection products

• 17/05/2017
• Articles

On 16 May 2017, the General Court offered guidance on the concepts of vexatious action and abuse of regulatory procedure in the context of a judgment upholding a Commission decision to reject a complaint brought by Agria Polska and four other companies active in the parallel importation of plant protection products (“PPP”), primarily from Poland to Germany and Austria.

As far as Article 102 TFEU is concerned, the complaint in question alleged that manufacturers and distributors of PPP held a position of collective dominance on the market, which they abused by pursuing a coordinated campaign of making false claims to Austrian and Polish authorities with the intention of eliminating the complainants from the market. Those claims primarily related to alleged violations of regulations applicable to PPPs, as well as provisions relating to tax. In addition, the complaint alleged that, irrespective of the existence of a collective dominant position, one of the undertakings involved (Raiffeisen Ware Austria AG, “RWA”) held a dominant position and infringed Article 102 TFEU by engaging in the same type of conduct.

Before the General Court, the complainants argued inter alia that the Commission, in assessing the complaint, had made a manifest error by refusing to apply the principles governing the concepts of vexatious action and abuse of regulatory procedure developed in the case law on abuse of dominant position, namely Case T-111/96 ITT Promedia v Commission and Case T-321/05 AstraZeneca v Commission.

The General Court, however, did not fault the Commission’s view that these principles would not apply in the present case because the manufacturers and distributors of PPP at issue had merely informed the national administrative and criminal authorities of alleged violations, while those authorities retained discretion to decide whether to pursue the claims made. Conversely, the administrative and judicial authorities concerned in both ITT Promedia and AstraZeneca had no discretion to decide whether it was appropriate to follow up on the proceedings initiated by the dominant undertakings in those cases.

In the General Court’s view, this distinction meant that the Commission could, without committing a manifest error of assessment, find that the likelihood of establishing an infringement in the present case was low because it was not clear that the conduct would be considered an abuse of a dominant position within the meaning of the previous case-law. The General Court also emphasised the need to adopt a restrictive approach towards finding an infringement in cases alleging vexatious litigation and abuse of regulatory procedures to ensure that the general rule of access to the courts is not frustrated.